Kerala High Court
Bhadran S/O Nanu vs State Of Kerala on 11 October, 1994
Equivalent citations: 1995(2)ALT(CRI)504, 1995CRILJ676
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. This is a case of murder in which the victim was an old lady who was staying all alone in her residence. One of her sons was a judicial magistrate of first class who was posted far away from her residence. The old lady was throttled to death inside her house on the night of 24-8-1988. The accused in this case was indited for that murder and he stands convicted under Sections 302, 392 and 449 of the Indian Penal Code. Since the Sessions Court awarded only the lesser sentence for the offence of murder, suo motu revisional proceedings have been initiated to consider whether the extreme sentence should have been awarded.
2. Previously the accused was convicted of the same offences on the same facts, but a division bench of this Court had set aside the conviction and sentence as the accused was not given any opportunity to adduce evidence and the case was remitted to the trial court for fresh disposal after affording such an opportunity. Sessions Court, after collecting further evidence adduced by the accused, convicted him and sentenced him again and this appeal is in challenge of the same.
3. Prosecution story is very concise and is the following: The old lady was in her seventies and she was residing in "Rajamangalam" house (at Punalur) and the accused was residing in the neighbourhood. On the night of occurrence accused went to Rajamangalam house, strangulated the old woman by throttling her and removed her ear studs (M.O.7 series), a gold chain (M.O.8) and a waist chain (M.O.9) and decamped with the booty.
4. On the next evening her grandson visited the house for some purpose and saw his grandmother's dead body lying on the floor. He frantically reported it to his father (P.W. 1) and there was a rush of people to the house to have a glimpse of the sight/First Information Statement was lodged by P.W. 1 (another son of the deceased) with Punalur Police Station on the night. Frantic steps were resorted to trace out the culprit, and services of police dog-squad were availed of. On 28-8-88 the accused was arrested but then he made an attempt to commit suicide. He was rushed to the hospital where he was treated for a few days. After his discharge from the hospital the police interrogated him and on the basis of the information elicited from him the gold chain, ear studs and waist chain were recovered.
5. There is no dispute regarding the cause of death of the old lady that she was murdered by throttling. Learned Counsel for the appellant has fairly conceeded that it would be a futile endeavour to contend that her death would not have been a case of homicide.
6. Prosecution has catelogued the following circumstancees to establish that it was the accused who had killed the old lady: (1) Her death would have been between 36 to 48 hours prior to the time of autopsy. (Post mortem examination was conducted at 12.45 noon on 26-8-88). (2) Accused was seen proceeding to Rajamangalam house around 7 p.m. on the night of occurrence. (3) When the police dog was brought to the scene, accused scampered away therefrom. (4) The police dog went up to the house of the accused after collecting smell from the scene. (5) Soon after the death of the deceased accused was found in possession of her ear studs, gold chain and waist chain. (6) Accused made an extra judicial confession to three persons (P. Ws. 9, 18 and 19) which is supported by Ext. P4 letter. (7) Accused attempted to commit suicide when the police nabbed him. (8) The finger impression collected from a vessel (M.O.3) in the house of the deceased was that of the accused.
7. Learned Sessions Judge, however, sidelines the evidence relating to extra judicial confession as not a very reliable piece of evidence. But he regarded the other circumstances as proved and held that the proved circumstances are sufficient to form a completed chain pointing unerringly to the guilt of the accused.
8. Shri. M. Retnasingh, learned Public Prosecutor (who is also the Director General of Prosecutions) made a bid to convince us that despite trial court's finding regarding extra judicial confession in this case a scrutiny can be made and that item of evidence can be accepted as reliable. But after considering the arguments and scrutinising the said evidence, we too feel that finding of the learned Sessions Judge on that point needs no interference. It looks unnatural that the man who confessed his guilt wanted others to scribble down what he narrated to them and then keeps that record in his own pocket until the arrival of the police. We too are not impressed by it.
9. Learned Counsel for the appellant made a scathing criticism on the finding made by the Sessions Judge that the finger impression collected from M.O.3 vessel was that of the accused. Counsel pointed out that there is no evidence to show that the finger impression collected from M.O. 3 vessel was compared with the finger impression of the accused. According to us, learned counsel is fully justified in making such a contention. It was a serious fallacy which crept in evidence. The photograph taken from the finger impression found on the vessel is Ext. P9. It was compared with the finger prints in Ext. P8 as though the latter was accused's finger prints. The evidence shows that Ext. P8 is the photograph of the finger impression collected from another vessel. Nobody has thought of correcting this error at any time, not even when this point was seriously raised before the Sessions Court after remand. We are compelled to observe that the first trial judge has recorded evidence in this case in a clumsy manner and one of its consequences is the serious error made regarding Ext. P8.
10. Shri M. Retnasingh, learned Public Prosecutor felt that without correcting the mistake regarding Ext. P8 there is no use of it to the prosecution. Hence he filed Crl. M.P. No. 2479/94 for adducing additional evidence to correct the mistake. Of course, Shri. Janardhana Kurup opposed the application with all vehemence contending that in a case where the accused has been undergoing imprisonment for the last six years such belated petition under the pretext of correcting the mistake should be discouraged. We bestowed our anxious consideration and we are not disposed to reject the prayer for correcting the mistake merely because of the delay involved in it. What the learned Public Prosecutor in this Court has done in perfectly in discharge of his duty to move for correction of such serious mistake and a court of law shall not base its final decision on any such glaring mistake. We make it clear that if the identity of the finger impression in Ext. P9 (found on M.O.3) becomes so crucial as to tilt the decision, we would allow the Crl. M.P. Otherwise, we can reject the petition as unnecessary.
11. Prosecution evidence regarding the recovery of the valuables needs scrutiny now. When accused was arrested first he could not be interrogated then as he made an attempt to commit suicide. However, after he was discharged from hospital the police interrogated him and then accused told the Circle Inspector that the gold chain was pledged with P.W. 6 through P.W. 8. M.O.8 gold chain was recovered from P.W. 6 as per Ext. P3 mahazar on 15-9-88. P.W. 8 said in his evidence that accused met him on 25-8-88 and wanted Rs. 1,000/- by pledging M.O. 8. As P.W.8 was short of money, he took the accused to P.W.6 who lent the money on the security of the ornament. This version of P.W. 8 was fully supported by P.W. 6 also. We concour with the finding of the learned Sessions Judge that the accused was in possession of M.O.8 gold chain on 25-8-1988.
12. Similarly, when accused was interrogated he told P.W.22 that the ear studs and gold chain have been buried in the ground near his residential compound. Those ornaments were disinterred therefrom. Ext. P6 is the mahazar drawn up by P.W.22. We have no reason to disbelieve the evidence on that point either.
13. Those ornaments were identified by the sons and grandson of the deceased (P. Ws. 1, 3 and 4 respectively) as those of the deceased. An attempt was made to show that those persons are incompetent to identify the valuables correctly. But we are not impressed by the said contention.
14. Then the question is whether accused's possession of such valuable ornaments could have been after the death of the deceased. On this point Shri. G. Janardhana Kurup, learned counsel for the appellant, addressed detailed arguments to convince us that death of the old lady could not have been before noon of 25-8-1988 i.e., the interval between the death and autopsy could not have been more than 24 hours.
15. P.W. 14 doctor who conducted the autopsy was a Police Surgeon with a Post Graduate degree in Forensic Medicine. He claimed to have conducted more than 1500 autopsies. He has noted the following post mortem features on the dead body which he had recorded in Ext. P12 post mortem certificate:
Face livid blood stained fluid was coming from nostrils. Light brownish fluid was coming from mouth. Tongue partly protruded out, Sub conjunctival haemorrhage in both eyes, Lips normal, Nails blue, no injury to external genitalia.
Marbling present in upper part of chest and upper arms, post mortem staining was on the back and was fixed. Rigormortis was retained in upper and lower limbs. Abdomen slightly distended. Greenish discoloration of lower abdomen....
Lungs severely congested and oedematus.... Brain congested and oedematus. All other internal organs were congested, otherwise normal.
16. From the aforesaid data Dr. Thankappan (P.W. 14) concluded that the deceased would have died between 36 to 48 hours prior to the time of autopsy. Learned Counsel made a frontal onslaught on the above opinion of the doctor witness and tried to convince us that death would not have been before 25 hours prior to the time of autopsy. He cited a passage from Modi's Medical Jurisprudence showing that rigor mortis usually sets in between 3 to 6 hours after the death in temperate climates and sets off within 24 to 30 hours. In this case the doctor noted that rigor mortis was retained in upper and lower limbs. Hence it must have been the last stage of the duration of rigor mortis.
17. The estimation of interval between death and autopsy is always a difficult process even for experts in forensic medicine as there could be different factors causing variances in putrifactive progress. Scientists have developed of late certain indications to reach an estimation as near as possible for deciding the time of death. Rectal temperature vis-a-vis environmental temperature is now considered to be a more dependable test. Unfortunately that is not available in this case.
18. A study of duration of rigor mortis has resulted in presenting a very wide range regarding time of death. Modi has recorded a table prepared by Dr. Mackenzie from his observations on dead bodies in Calcutta. The table shows that duration of rigor mortis can go up to 40 hours. In the text-book by Dr. C.K. Parikh on Medical Jurisprudence the author has stated that marbling of the body would commence after 24 hours and would remain prominent between 36 to 48 hours. It is contextually significant to point out that P.W. 14 has noted marbling in upper part of chest and upper arms of the body. Distension of abdomen and bluishness of nails are further indication of decomposition developed around 36 hours and a little beyond.
19. On a consideration of the data collected by Dr. Thankappan (P.W. 14) with the help of authorities provided in text books we have no difficulty to agree with the opinion of P.W. 14 doctor that the death of the deceased would have taken place between 36 to 42 hours prior to the time of autopsy.
20. P.W.5 has stated that he saw the accused walking towards the direction of Rajamangalam house around 7 p.m. on the night of occurrence. Of course, the said evidence was seriously attacked, but we do not find any cogent reason to sidestep the testimony of P.W.5 on that point.
21. Next circumstance highlighted by the prosecution is that the tracker dog which was brought by the police moved up to the house of the accused after smelling a beedi stump lying on the floor of the room in which the dead body was found. P.W. 17 has deposed that the dog brought for the purpose was a trained animal. Learned Public Prosecutor contended that the circumstance so emerged through P.W. 17 provides a valuable link. The question is how far is the said evidence useful?
22. Utility of tracker dogs in crime detection is on the increase as their use has been yielding profitable clue to crack down culprits in many a crimes. It was once thought that human liberty should not depend upon canine sensibilities due to inherent drawbacks. One of them is the liability to subject the evidence to cross-examination. Another is the possibility of the dog misjudging the smell or mistaking the track. But recent trends show that hounds belonging to certain special breeds sheltered in specialised kennels and imparted with special training are capable of leading investigating agency to very useful clue in crime detection and thereby help detectives to make a breakthrough in investigation. English courts have already started treating such evidence as admissible. In Canada and in Scotland such evidence has become, of late, admissible though in United States the position is not uniform in different states.
23. The Supreme Court, without reaching any final opinion on the subject, has once observed in Abdul Razak v. State of Maharashtra, AIR 1970 SC 283: (1970 Cri LJ 373) that dogs are intelligent animals with many thought processes similar to the thought processes of human beings though the evidence relating to tracker dog cannot he likened to the evidence of scientific experts describing chemical reactions, blood tests and the actions of bacilli. It is advantageous to refer to the decision rendered by a learned single Judge of the Bombay High Court in Babu Maqbul Shaikh v. State of Maharashtra, 1993 Cri LJ 2808. Learned Judge pointed out that if the evidence passes tests of scrutiny and reliability as in the case of any other evidence, there is no warrant to treat it as inadmissible. Some guidelines have been laid down in the said decision. The following observations of the learned Judge are useful in this context as reflecting the correct position on the subject:
It is scientifically accepted that dogs are rated as extremely intelligent animals and that some of their sensibilities are very highly developed and are extremely reliable. It is also to be noted that there are some breeds of dogs and some strains which are specially utilised for hunting and tracking because of their abnormally high talents. If the dog belongs to one of these categories and if it is shown to the Court that it has been specially trained for purposes of detection, not only would the dog-tracking evidence be admissible, but it will have to be relied upon as being evidence of a very high calibre.
24. We are also of the view that evidence relating to movements of tracker dogs cannot be rejected as inadmissible and in appropriate cases it is open to the court to consider it. Its reliability, of course, depends upon the acceptability of the testimony of persons who manned the dog and those who witnessed the movements and conduct of the animal.
25. In this case we do not have any evidence regarding those aspects except that the police dog reached the house of the accused. We are not disposed to rely on the said item of evidence in the absence of other necessary assurance to convince us of its acceptability.
26. All the same, we count the conduct of the accused in scampering away from the scene when the police dog was brought to the house of occurrence. We bear in mind that people have a belief that if police dog is brought the culprit would be traced out soon. Accused would not have been in exception to the said general belief. As the accused suddenly slipped away when dog squad arrived at the scene it was specially noticed by the persons present. The said conduct is not consistent with a hypothesis of innocence of the accused.
27. When the police nabbed him on 28-8-88 he made a frantic attempt to commit suicide by stabbing himself on the abdomen. As the accused did not dispute this point, we are relieved of the task to discuss the evidence on that aspect.
28. The circumstances proved, as shown above, are sufficient to come to the irresistible conclusion that it was the accused who caused the death of the deceased on the night of 24-8-1988.
29. We are sorry to point out that more circumstances sought to be arrayed by the investigating agency are not properly presented in the trial court by the additional Public Prosecutor who conducted the prosecution. But even in spite of such inept handling of the prosecution in the trial court the accused could not escape conviction.
30. We do not think that the sentence of imprisonment for life awarded by the trial court for the offence of murder needs enhancement to capital sentence on the facts and circumstances of this case.
In the result, we confirm the conviction and sentence and dismiss this appeal. Crl. R.C. is also disposed of as above.